Karnataka High Court
Huchchappa S/O Balappa Yandigeri vs Padiyappa S/O Bhimappa Bidari on 16 January, 2024
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RSA No.5573 OF 2010
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 16TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
REGULAR SECOND APPEAL No.5573 OF 2010
BETWEEN:
1. HUCHCHAPPA
S/O.BALAPPA YANDIGERI
AGE: 25 YEARS, OCC: AGRICULTURE
R/O: SIDDAPUR, TAL: BILAGI
DIST: BAGALKOT-587 102
2. MAHADEVAPPA
S/O.YANKAPPA YANDIGERI
AGE: 47 YEARS, OCC: AGRICULTURE
R/O.SIDDAPUR, TAL: BILAGI
DIST:BAGALKOT-587 102
...APPELLANTS
(BY SRI.S.B.HEBBALLI, ADVOCATE)
AND:
Digitally
VIJAYALAXMI signed by
1. PADIYAPPA
M BHAT VIJAYALAXMI
M BHAT
S/O.BHIMAPPA BIDARI
AGE: 45 YEARS, OCC: AGRICULTURE
R/O: SIDDAPUR, TAL: BILAGI
DIST: BAGALKOT-587 102
2. YANKAPPA
S/O.BALAPPA YANDIGERI
AGE: 23 YEARS, OCC: AGRICULTURE
R/O: SIDDAPUR, TAL: BILAGI
DIST: BAGALKOT-587 102
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RSA No.5573 OF 2010
3. BASAWWA
D/O BALAPPA YANDIGERI
AGE: 21 YEARS, OCC: HOUSEHOLD WORK
R/O: SIDDAPUR, TAL: BILAGI
DIST: BAGALKOT-587 102
4. NEELAVVA
S/O.SIDDAPPA PUJARI
AGE: 27 YEARS, OCC: HOUSEHOLD WORK
R/O: SARUR, TAL: MUDDEBIHAL
DIST: BIJAPUR-587 101
...RESPONDENTS
(BY MS.GAYATRI S.R., ADVOCATE FOR
SRI.MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE FOR R1
R2 & R3- RESERVED
R4- NOTICE TO R4 DISPERSED WITH V/O DATED 05.07.2012)
***
THIS REGULAR SECOND APPEAL IS FILED U/SEC. 100 OF
CPC., AGAINST THE JUDGMENT & DECREE DTD: 03-04-2010 PASSED
IN R.A.NO.76/2008 ON THE FILE OF THE DISTRICT JUDGE
BAGALKOT, DISMISSING THE APPEAL, FILED AGAINST THE
JUDGMENT DATED: 13.06.2008 AND THE DECREE PASSED IN
O.S.NO.162/2005 ON THE FILE OF THE CIVIL JUDGE (SR. DN.)
BILAGI, DECREEING THE SUIT FILED FOR SPECIFIC PERFORMANCE
OF CONTRACT.
THIS REGULAR SECOND APPEAL COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
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RSA No.5573 OF 2010
JUDGMENT
Appellants/defendants feeling aggrieved by the
judgment of First Appellate Court on the file of District
Judge, Bagalkot, in RA.No.76/2008 dated 03.04.2010 in
confirming the judgment of Trial Court on the file of Civil
Judge (Sr.Dn.), Bilagi in O.S.No.162/2005 dated
13.06.2008 preferred this appeal.
2. Parties to the appeal are referred with their ranks as
assigned in the Trial Court for the sake of convenience.
3. The factual matrix leading to the case of plaintiff can
be stated in nutshell to the effect that the father of
defendants No.1 to 4 Balappa, who was joint owner with
defendant No.5 of land bearing R.S.No.117/2 measuring 5
acres 19 guntas, out of it eastern 1 acre land was offered
for sale. The plaintiff has agreed to purchase the suit
property for valid consideration amount of Rs.60,000/-
and out of it paid an amount of Rs.35,000/- as earnest
money and accordingly, agreement of sale dated
11.5.2000 was executed by Balappa and defendant No.5.
RSA No.5573 OF 2010
On the death of Balappa, defendant Nos.1 to 4 who have
inherited the property of Balappa were liable to execute
the sale deed by receiving balance consideration amount.
However, the defendants in spite of being requested by
the plaintiff to execute the sale deed, were postponing on
one or the other pretext. Plaintiff got issued legal notice
dated 1.7.2002 and in spite of due service of notice,
defendants No.1 to 5 have not replied to the same. The
plaintiff is always ready and willing to perform his part of
the contract and the defendants have refused to execute
the sale deed in spite of receipt of legal notice issued by
the plaintiff. Therefore, the plaintiff was constrained to
institute the suit for the relief claimed in the suit.
4. In response to the suit summons, the defendants have
failed to appear before the Court and they were placed
exparte. Plaintiff to prove his case relied on the oral
testimony of PWs 1 to 3 and the documents Exhibits P1 to
P11. The Trial Court after having heard the arguments of
the counsel for plaintiff and on appreciation of evidence on
record decreed the suit of plaintiff and directed the
RSA No.5573 OF 2010
defendants to execute the sale deed by receiving balance
consideration amount. If the defendants failed to execute
the sale deed then, plaintiff to seek registration of sale
deed through due process of law.
5. The defendants have challenged the said judgment and
decree before the First Appellate Court on the file of
District Judge, Bagalkot in R.A.No.76/2008. The First
Appellate Court after re-appreciation of evidence on record
by judgment dated 03.04.2010 has dismissed the appeal
and confirmed the judgment and decree passed by the
Trial Court.
6. The appellants/defendants No.1 to 5 challenged the
judgment and decree of both the courts below contending
that suit summons have not been properly served on
defendant No.5. Defendants No.1 to 3 were minors as on
the date of institution of the suit and they were never
represented by their proposed guardian, defendant No.5.
When defendant No.5 was placed exparte, it was the duty
of the Trial Court to appoint Court guardian to safe guard
RSA No.5573 OF 2010
the interest of minors, defendants No.1 to 3. Defendants
No.1 to 3 during the pendency of the suit have attained
majority and the cause title was accordingly amended, but
there was no service of suit summons after amendment of
cause-title. The suit against defendant No.2 was already
dismissed on 12.9.2006 for not taking steps against said
defendant. Plaintiff has filed I.A.3 which came to be
allowed on 11.4.2007 and amended plaint was filed on
4.6.2007. However, there was no any summons issued to
defendant No.2 after filing amended plaint on 4.6.2007.
The Trial Court has ordered to issue suit summons to
defendant No.2 on 19.12.2007 at the stage of arguments.
The defendant No.2 in spite of service of suit summons,
did not appear before the Court and he was placed
exparte. The dismissal of suit as against defendant No.2
remains undisturbed in spite of allowing I.A.3. The entire
approach of Trial Court which is affirmed by the First
Appellate Court in holding proper service of suit summons
to defendants and the plaintiff are entitled for specific
performance cannot be legally sustained. The agreement
RSA No.5573 OF 2010
of sale dated 11.5.2000 Ex.P.1 is insufficiently stamped
and not registered. As such, the same is not admissible in
evidence. However, both the courts below have not
properly considered the admissibility of agreement of sale
dated 11.5.2000 Ex.P.1 and arrived to an improper
conclusion. The appreciation of oral and documentary
evidence cannot be legally sustained and therefore, prayed
for allowing the appeal and to set aside the judgment and
decree of both the courts below, consequently to dismiss
the suit of the plaintiff.
7. In response to notice of appeal, respondent
No.1/plaintiff appeared through counsel. Respondents
No.2 and 3/defendants No.2 and 3, though served,
remained absent and notice to respondent No.4/defendant
No.4 came to be dispensed with. The Trial Court records
have been secured.
8. This Court by order dated 11.4.2015 has admitted the
appeal to consider the following substantial questions of
law :
RSA No.5573 OF 2010
1. Whether the Trial Court and the First
Appellate Court have committed a serious error
in not looking to the important aspect that 1st
defendant was a minor and had not been
properly represented and that the suit came to
be disposed of without service of proper
summons to the 1st defendant after attaining
majority?
2. Whether judgment of the Trial Court and
the First Appellate Court are perverse and
illegal?
9. Heard the arguments on both sides.
10. The plaintiff is seeking enforcement of agreement of
sale dated 11.5.2000 Ex.P.1 with respect to the suit
property which the father of defendant Nos.1 to 4 Balappa
and defendant No.5 agreed to sell the same to the plaintiff
for total consideration of Rs.60,000/-. Out of the total
sale consideration, plaintiff on the date of execution of
agreement of sale dated 11.5.2000 paid earnest money of
Rs.35,000/-. The defendants were placed exparte in the
suit. The Trial Court on appreciating the evidence of PWs.
RSA No.5573 OF 2010
1 to 3 and the documents Exs.P1 to P11, decreed the suit
of the plaintiff for specific performance. The said judgment
and decree of the Trial Court is affirmed by First Appellate
Court in R.A.No.76/2008 vide judgment dated 3.4.2010.
11. The appellants/defendants 1 and 5 contended that as
on the date of institution of the suit, defendants No.1 to 3
were minors. Defendant No.5, said to be the proposed
guardian of defendants No.1 to 3, remained exparte.
Therefore, it was the duty of the Trial Court to appoint the
court guardian to look after the interest of defendants
No.1 to 3.
12. The contention of appellants/defendants before the
First Appellate Court that there was no proper service of
suit summons on them has been negated by the First
Appellate Court for the reasons recorded in the judgment.
The First Appellate Court has held that as on the date of
service of suit summons on defendants No.1 to 3, they
have attained the age of majority and there is proper
service of suit summons to them.
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RSA No.5573 OF 2010
13. On careful reading of the Trial Court records, it would
go to show that as on the date of institution of suit by the
plaintiff on 29.7.2002, defendants No.1 to 3 were shown
as minors. Counsel for plaintiff has filed I.A.I under Order
XXXII Rule 3 of CPC for appointing defendant No.5 as the
minor guardian of defendants Nos.1 to 3. The Trial Court
by order dated 29.7.2002 has ordered to issue notice of
I.A.I to defendant No.5. The suit summons to defendant
Nos.4 and 5 were served and they were placed exparte.
The suit came to be adjourned to 26.11.2002 and on
26.11.2002, to the next date i.e. on 18.07.2003 for taking
steps to defendants No.1 to 3. On the said date, counsel
for the plaintiff filed memo with three documents i.e.
Exhibits P.9, P.10 and P.11, the school records of
defendant No.2 Yankappa, defendant No.1 Huchappa and
defendant No.3 Basavva, respectively. In view of such
report by way of memo and producing school records, the
Trial Court held that defendants No.1 and 3 have attained
the age of majority and accordingly, cause title in the
plaint was amended. The suit summons was also ordered
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RSA No.5573 OF 2010
to be issued to defendants No.1 and 3 and for taking steps
against defendant No.2 who continues to be the minor.
The matter came to be adjourned to the next date.
Defendants No.1 and 3 were served personally on
18.8.2003. Therefore, they were placed exparte. The
Trial Court by order dated 12.9.2006 dismissed the suit
against defendant No.2 as steps not taken. Plaintiff's
counsel filed I.A.III on 11.4.2007 under Order XXXII Rule
14(A) of CPC seeking permission to amend the cause title,
since defendant No.2 has attained the age of majority. On
the same day, the said application came to be allowed and
the cause-title of defendant No.2 in the plaint was
amended. This order of the Trial Court is passed without
noticing the suit of the plaintiff against defendant No.2
already came to be dismissed for not taking steps vide
order dated 12.9.2006. Therefore, mere allowing of I.A.III
and correcting the cause-title of defendant No.2 in the
plaint will not revive the order of the Trial Court dated
12.9.2006 wherein the suit of plaintiff against defendant
No.2 came to be dismissed.
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RSA No.5573 OF 2010
14. The order sheet of the Trial Court further reveals that
it is shown throughout the proceedings that suit against
defendant No.2 is dismissed and the matter was
proceeded for recording evidence. When the matter was
listed for arguments on 19.12.2007, the Trial Court has
allowed I.A.VI to recall the order dated 12.9.2006 in
dismissing the suit of plaintiff against defendant No.2. The
said application came to be allowed on the same day and
ordered to issue suit summons to defendant No.2. The
Court has not issued any notice of I.A.III to the defendant
No.2, so also has not issued notice of I.A.VI to defendant
No.2 requesting to recall the order dated 12.9.2006 in
dismissing the suit against defendant No.2. The
aforementioned records of the Trial Court would go to
show that only convenient procedure desired by the
plaintiff has been adopted. When the matter was posted
for taking steps against minor defendants No.1 to 3 on
18.7.2003, no steps was taken for appointment of minor
guardian of defendants No.1 to 3. However, it is reported
to the Court by way of memo and by producing the school
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RSA No.5573 OF 2010
records Exs.P9 to P11 that defendants No.1 and 3 have
attained majority and accordingly, cause title was
amended. However, defendant No.2 still continues to be
the minor and in spite of it, plaintiff has not chosen to take
any steps for appointing the court guardian for minor
defendant No.2. When the proposed guardian defendant
No.5 remained exparte, the suit against defendant No.2
itself came to be dismissed on 12.9.2006 for not taking
steps, the proper procedure in terms of Order XXXII
should have been followed. Therefore, even if the Trial
Court has issued suit summons to defendant No.2 vide
order dated 19.12.2007, it is non-est in law. Therefore,
under these circumstances, findings of the First Appellate
Court that when the suit summons were served on
defendants No.1 to 3 they have attained the age of
majority and as such, service of suit summons on them
was held to be proper cannot be sustained.
15. The another contention before the First Appellate
Court is that the agreement of sale Ex.P.1 is insufficiently
stamped and the same is not admissible in evidence.
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RSA No.5573 OF 2010
Therefore, no decree for specific performance can be
granted in favour of the plaintiff based on inadmissible
document. The First Appellate Court by referring the Co-
ordinate Bench judgment of this Court in Smt.Mallika
Paneer Seham vs. Raja Sattyanarayana Shetty &
Others reported in ILR 2007 Kar 2786 has held that
when once the document is admitted without there being
any objection, the admissibility of it cannot be challenged
at a subsequent stage in terms of Section 35 of the
Karnataka Stamp Act, 1957. It is pertinent to note here
that the defendants were placed exparte before the Trial
Court. Therefore, naturally there would be nobody to
object the marking of insufficiently stamped document
i.e., agreement of sale Ex.P.1. The First Appellate Court
has observed that learned counsel for the
respondent/plaintiff does not deny that the said document
suffer from deficit stamp duty. However, based on the
aforementioned judgment of this Court in terms of Section
35 of the Karnataka Stamp Act, 1957, when once
insufficiently stamped document is admitted in evidence,
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RSA No.5573 OF 2010
the admissibility of the same cannot be called in question
at the subsequent stage of the suit. It is pertinent to note
here that defendants were placed exparte before the Trial
Court and therefore, naturally there would be nobody to
object the marking of insufficiently stamped document i.e.,
agreement of sale Ex.P.1. When an insufficiently stamped
document is tendered in evidence and relief is claimed
based on the said document, it was the duty of the Court
to decide regarding admissibility of insufficiently stamped
document. In this context of the matter it is useful to
refer to the Co-ordinate Bench judgment of this Court in
Sri R Mahesh and Another vs. Sri B P Venugopal
reported in AIR 2018 Kar 198.
In view of the principles enunciated in this judgment
when the question of admissibility of insufficiently stamped
document arises before the Court, it is the duty of the
Court to decide the admissibility of insufficiently stamped
document whether there is an objection or no objection by
defendant. The bar contemplated under Section 35 of the
Karnataka Stamp Act. 1957 is only for challenging the
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admissibility of document at any stage of the same suit or
proceedings. The said proviso itself makes it clear that the
said bar is except as provided in Section 58 of the
Karnataka Stamp Act, 1957. In terms of Section 58(1) of
the said Act, when the admissibility of insufficiently
stamped document was called in question, the Appellate
Court by exercising power under Section 58(1) of the Act,
decide the correctness and legality of admitting
insufficiently stamped document and the bar contemplated
under Section 35 of the Karnataka Stamp Act will not
come in the way of exercising power by the Appellate
Court in deciding the correctness and legality of
admissibility of document which was insufficiently
stamped.
16. In the present case, by virtue of unregistered
agreement of sale Ex.P.1 dated 11.5.2000 delivery of
possession of the suit property was given to the plaintiff.
Where the possession of the suit property is delivered for
sale of immovable property, then the same falls in terms
of Article 5(e) of the Karnataka Stamp Act, 1957 and
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RSA No.5573 OF 2010
stamp duty as a conveyance has to be paid on such
document. In the present case, the plaintiff claims that
possession is delivered under the document Ex.P.1, then,
it amounts to conveyance in terms of Article 5(e) of the
Karnataka Stamp Act and without paying proper stamp
duty, the document itself cannot be admitted in evidence.
Therefore, the grant of decree of specific performance in
favour of plaintiff based on inadmissible document cannot
be legally sustained.
17. In view of the reasons recorded as above, it has been
held that minor defendants No.1 to 3 as on the date of suit
have not been properly represented. Secondly, the suit
against defendant No.2 was dismissed and without
recalling the order, I.A.III was allowed and summons was
ordered to be issued to defendant No.2 which cannot
revive the earlier order of the Trial Court dated 12.9.2006
for dismissing the suit against defendant No.2. When the
matter was posted for arguments on 19.12.2007, I.A.VI
was filed to recall the dismissal order passed against
defendant No.2 and the notice of I.A.VI was not given to
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RSA No.5573 OF 2010
defendant No.2. Therefore, in view of the reasons
recorded as above, opportunity is required to be given to
the defendants subject to appropriate conditions to co-
operate with the trial of the suit expeditiously.
Consequently, substantial questions of law are answered
in affirmative and proceed to pass the following order :
ORDER
Appeal filed by Appellants/defendants is hereby
allowed.
The judgment of First Appellate Court on the file of
District Judge, Bagalkot, in R.A.No.76/2008 dated
03.04.2010 confirming the judgment of Trial Court on the
file of Civil Judge(Sr.Dn.), Bilagi in O.S.No.162/2005 dated
13.06.2008 are hereby set aside.
The matter is remanded to the Trial Court for disposal
of the same in accordance with law by giving top priority
as expeditiously as possible subject to defendants Nos.1 to
5 paying cost of Rs.5,000/- to the plaintiff.
Plaintiff and defendants No.1 to 5 are directed to
appear before the Trial Court on 15.2.2024 to receive
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RSA No.5573 OF 2010
further instructions from the Trial Court. The Trial Court is
directed to issue notice only to defendants No.2 to 4.
Office is directed to send back the records to the Trial
Court.
Sd/-
JUDGE
rs
